United States of America, Plaintiff-appellee, v. Lawrence Branch, A/k/a Spook, Defendant-appellant.united States of America, Plaintiff-appellee, v. Eddie Haigler, A/k/a Ram, Defendant-appellant, 934 F.2d 320 (4th Cir. 1991)

Defendants Lawrence Branch and Eddie Haigler appeal their conviction and sentences for substantive counts and for conspiracy for possession with intent to distribute and distribution of cocaine in violation of 21 U.S.C. §§ 841(a) (1), 846; 18 U.S.C. § 2. We affirm the convictions of both Branch and Haigler. We vacate Haigler's sentence and remand for resentencing.

* Branch, who is black, asserts that he was denied a fair trial because of improper jury selection procedures, which excluded black veniremen from the jury. The venire initially contained 72 white and 28 black potential jurors. Two panels were then created out of the 100 for the separate trials of other defendants. Because the same informant was a witness in all three cases, the appellants successfully sought a ruling that no juror could sit in more than one case. Only 31 potential jurors remained when it came time to select Branch's jury. Of those 31 potential jurors, 6 were black. During the selection of the trial jury, the prosecution struck three of the four blacks on the panel and one black alternate. The trial jury consisted of 11 white and 1 black jurors. On Branch's motion the district court, applying Batson v. Kentucky, 476 U.S. 79 (1986), directed the prosecutor to explain his reasons for peremptorily striking four black jurors. The district court ruled that the reasons dispelled Branch's claim of discrimination. Branch does not assign error to the court's ruling.

Branch complains, however, that the proportion of black veniremen in the original venire, which was 28%, was reduced to 19.4% in the panel which was designated to try his case. This reduction, he asserts, enabled the prosecution to fashion a trial jury with only 8.3% black presence, even though the prosecutor's preemptory strikes were not discriminatory. Branch contends that the prosecutor discriminated against him by accepting a disproportionate number of black jurors to serve for separate trials. In this way, Branch continues, the prosecutor depleted the number of black jurors available for his trial. He contends the court erred by not requiring the prosecutor to articulate a neutral explanation for his depletion of the number of black jurors.

Branch's argument, though unusual, is not unique. A similar complaint was rejected in Wilson v. Butler, 813 F.2d 664, 675 (5th Cir. 1987). To require an explanation from the prosecutor, Branch must first show a prima facie case of purposeful discrimination. To do this he must prove "that members of the defendant's race were substantially underrepresented on the venire from which his jury was drawn, and that the venire was selected under a practice providing 'the opportunity for discrimination.' " Batson, 476 U.S. at 95.

The panel available for Branch's trial had 19.4% black veniremen. Branch introduced no evidence that a panel with this proportion substantially underrepresented members of his race. Branch has also failed to show that the venire containing 28% black jurors was selected by an improper practice. He has not shown that the division of the venire for the three trials provided an opportunity for discrimination. Branch has not proved a prima facie case of discrimination, and the district court did not err by permitting the trial to proceed without requiring the prosecutor to explain why he allowed black jurors to serve in the other trials.

II

The district court admitted testimony of an informant that Branch told him to come into a trailer where the informant purchased cocaine from Waymer Williams, one of Branch's conspirators. While all three men were in the trailer a man cooking crack in the kitchen called to Branch, using his nickname, "Spook, the crack is ready." As the informant left the trailer he saw Branch walking toward the kitchen. Branch objected to the admission of the statement made by the man cooking crack. He contends that the statement was inadmissible because he was not charged with manufacturing, possessing, or distributing crack and because the statement prejudiced him.

The court admitted the statement pursuant to Federal Rule of Evidence 404(b) to show Branch's knowledge of the conspiracy or intent to distribute cocaine. A district court has broad discretion under 404(b) to weigh the prejudice against the probative value of evidence to determine admissibility. The judge in this instance found that the probative value of the evidence on the defendant's intent outweighed its prejudice. That decision is then reviewed for abuse of discretion. United States v. Masters, 622 F.2d 83, 87 (4th Cir. 1980). The district court charged the jury on the limited purpose of the evidence: it is admitted "not as evidence of his character or that he committed the offenses with which he's charged [but for the] limited purpose ... to establish or prove his intent to commit the offenses he's charged with, because it is evidence of some other crime of a similar nature." The limiting instruction provided an adequate safeguard to minimize prejudice. The admission of the evidence was within the discretion of the district court. Masters, 622 F.2d at 87-88.

III

Branch appeals the denial of a mistrial when a South Carolina law enforcement officer testified that Branch, after being read his Miranda rights, "didn't have anything to say to us concerning his arrest." Branch relies on Doyle v. Ohio, 426 U.S. 610 (1976), which protects against the prosecutor's use of a defendant's silence to raise an inference of guilt. 426 U.S. at 616-17.

We have adopted a balancing test to assess violations of Doyle, which takes into account, among other factors, the prosecutor's use of the silence, the importance of the silence evidence relative to the entire case, and the court's use of curative instructions. Williams v. Zahradnick, 632 F.2d 353, 36162 (4th Cir. 1980). The prosecutor never referred to Branch's silence or attempted to infer guilt from that silence; the officer made no more references to Branch's silence, and the court gave a curative instruction. Because of the limited use of the evidence of silence, as well as the curative instruction, there was no violation of Doyle. See Jeffers v. Leeke, 835 F.2d 522, 525-26 (4th Cir. 1987).

IV

In charging the jury on the requirements of conspiracy, the judge initially charged that conspiracy "may be as innocent as walking across the street or driving an automobile or using a telephone." After the jury requested additional instructions, the court charged that conspiracy "may be as innocent as the act of walking across the street, making a telephone call, going with other people to pick up cocaine, directing where people drive and all that kind of thing." Branch maintains that the example of telling people where to drive and going with others to pick up cocaine improperly influenced the jury because those two acts were the only affirmative acts he had taken.

"In charging the jury, the trial judge is not limited to instructions of an abstract sort." Quercia v. United States, 289 U.S. 466, 469 (1933). Judges are permitted to comment on the evidence and to use charges to aid the jury in applying the facts to the law. United States v. James, 576 F.2d 223, 228 (9th Cir. 1978). The judge in this case charged the jury that they had the power to find the facts; his instruction merely assisted them in determining how to apply those facts to the conspiracy count.

Branch relies on cases that require courts to refrain from giving a charge that has the "practical effect of directing a verdict." In those cases, the court's charge related to the weight of the evidence or the judge left the jury with the impression that the defendant should not be believed. See United States v. Woods, 458 F.2d 1351 (5th Cir. 1972); United States v. Williams, 473 F.2d 507 (5th Cir. 1973). In Branch's case, the judge confined his remarks to the application of the law to the evidence.

V

Branch and Haigler allege that the search warrant used to seize a kilogram of cocaine in July 1990 from Haigler's stash house was based on stale information because it alleged that the last sale of cocaine on Haigler's premises occurred in February 1990. They contend that the fruits of the search were, therefore, illegal and should be excluded.

In evaluating whether to exclude the fruits of a search because the warrant was stale, we consider several factors, including "the nature of the unlawful activity alleged, the length of the activity, and the nature of the property to be seized." United States v. McCall, 740 F.2d 1331, 1336 (4th Cir. 1984). In this case there was an ongoing conspiracy. The search warrant application recounted that for four years Haigler had distributed cocaine for the primary target of the investigation, Earl Scott, that the conspiracy was ongoing, and that drug traffickers, such as Scott, frequently kept records and cash in buildings occupied by their associates. In instances of ongoing conspiracy, the staleness standard is relaxed. United States v. Hyde, 574 F.2d 856, 865 (5th Cir. 1978). Moreover, the government sought business records, which are likely to be available at the residence for several months and thus mitigate staleness. McCall, 740 F.2d at 1336. The district court did not err by admitting evidence of items seized during the search.

VI

The district court computed Branch's guideline level for sentencing to be 26. To reach this level it included a kilogram and four ounces of cocaine seized in July 1990 from a stash house on Haigler's property. Branch protests the inclusion of this cocaine, because the last offense with which he was charged occurred in February 1990.

Branch's objection lacks both a factual and a legal basis. He was convicted of conspiring to distribute drugs with Haigler and Williams. On February 10, Branch and Williams went to the stash house to get cocaine for a sale that took place in Haigler's trailer nearby. The district court found that Branch could reasonably foresee that a supply of cocaine would be kept in the stash house from which he and Williams had procured some earlier in the year. The court's finding and the inference that it drew are amply supported by the record and cannot be disturbed on appeal. See United States v. Daughtrey, 874 F.2d 213, 218 (4th Cir. 1989).

The legal justification for the sentence is United States Sentencing Guidelines Sec. 1B1.3 which provides that a defendant convicted of a conspiracy is liable for the "conduct of others in furtherance of the execution of the jointly undertaken criminal activity that was reasonably foreseeable by the defendant." U.S.S.G. Sec. 1B1.3 comment. n. 1.

Branch also asserts that the district court erred by failing to grant him a downward adjustment for what he contends was a minimal role in the offense.

The guidelines provide a downward adjustment of four levels for one whose role in the offense is minimal. See U.S.S.G. Sec. 3B1.2(a). But the commentary cautions that the commission intended that this adjustment should be granted infrequently. Examples of activity warranting the adjustment are serving as a courier on a single occasion for a small amount of a drug or helping to off-load a single shipment of marijuana. Sec. 3B1.2(a) comment. n. 2. Tested by this comment, Branch does not qualify for a mitigating adjustment. The district court found that he was involved in the distribution of cocaine over a period of time, and this finding is supported by the evidence.

VII

Haigler contends that the district court erred by attributing to him five kilograms of cocaine which enhanced his sentence. The basis for the enhancement was a reference in the presentence report to the testimony of an informant in another drug trial. The informant testified that Ernest Mosley, Willie Aiken, Ronnie Mosley, and Tootsie Pop Brown were discussing a shortage of cocaine some time between September and November 1988. Willie Aiken said "Ram Haigler is supposed to bring five kilos tonight sometime and we just--we're waiting for his call now."

A court may consider hearsay evidence when sentencing a defendant. U.S.S.G. Sec. 6A1.3(a). Evidence given in another trial at which the defendant was not present is also admissible for the purpose of sentencing. United States v. Rios, 893 F.2d 479, 481 (2d Cir. 1990). But these departures from conventional rules of evidence are conditioned on the overriding requirement of sufficient indicia of reliability to support their probable accuracy. United States v. Roberts, 881 F.2d 95, 106 (4th Cir. 1989); U.S.S.G. Sec. 6A1.3(a). The government must prove the relevant information on which it relies to enhance a sentence by a preponderance of the evidence. United States v. Urrego-Linares, 879 F.2d 1234, 1237-38 (4th Cir. 1989).

Several facts persuade us that the informant's double hearsay does not provide sufficient indicia of reliability to support probable accuracy of a finding that Haigler possessed five kilograms of cocaine in the fall of 1988. At Haigler's trial, though the same informant was a government witness, he did not testify about Aiken's statement. The government did not call Aiken as a witness at Haigler's trial or sentencing. The record before us does not show that in the other trial Aiken was cross-examined about the statement. The record does disclose, however, that Aiken made the statement when his associates were trying to borrow some cocaine. The statement was made to facilitate the loan by the promise of repayment from the anticipated five kilograms. Promises are cheap, and whether there was any factual basis for the promise does not appear. It does appear, however, that the government intensely investigated Aiken and his associates, Ernest and Ronnie Moseley. All three of them were convicted of drug offenses. Also, the government thoroughly investigated Haigler and his coconspirators. In neither of these investigations did any more information about the five kilograms turn up. It is highly unlikely that the kilogram seized from the stash house on Haigler's property in June 1990 was the same cocaine Aiken talked about in the fall of 1988, and the district court made no finding that the cocaine was the same.

Finally, U.S.S.G. Sec. 1B1.3 takes into account the defendant's conduct in concert with others that was reasonably foreseeable by the defendant. The evidence does not show, however, that Haigler could reasonably foresee that he would supply Aiken cocaine in the fall of 1988. There is no proof, nor can a reasonable inference be drawn from the proof, that Haigler knew about Aiken's statement. There was no proof at Haigler's sentencing that Haigler ever supplied Aiken with cocaine before or after the fall of 1988. Upon review of the record we are "left with the definite and firm conviction that a mistake has been committed" in attributing to Haigler the five kilograms of cocaine Aiken mentioned. United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). Consequently, we remand the case with directions to resentence Haigler without attributing the five kilograms of cocaine to him.

Because the evidence disclosed that Haigler was an organizer of criminal activity that involved five participants, the district court did not err by enhancing his sentence four levels. U.S.S.G. Sec. 3B1.1(a).

VIII

We find no cause for reversal in other assignments of error. The case is remanded for resentencing of Haigler. In all other respects the judgments of the district court are affirmed.

No. 90-5321-AFFIRMED.

No. 90-5322-REMANDED FOR RESENTENCING; OTHERWISE AFFIRMED.